I'm a Fellow at the Adam Smith Institute in London, a writer here and there on this and that and strangely, one of the global experts on the metal scandium, one of the rare earths. An odd thing to be but someone does have to be such and in this flavour of our universe I am. I have written for The Times, Daily Telegraph, Express, Independent, City AM, Wall Street Journal, Philadelphia Inquirer and online for the ASI, IEA, Social Affairs Unit, Spectator, The Guardian, The Register and Techcentralstation. I've also ghosted pieces for several UK politicians in many of the UK papers, including the Daily Sport.

Good News and Bad News on Apple's Patents

I think we all know that this issue of technical patents has simply got entirely out of hand. It’s partly that such silly things seem able to attract patent protection these days and partly that the patents themselves are not being used to protect intellectual property so much as to stifle any competition at all.

There are two little stories, one good and one bad about this in relation to Apple from the last couple of days.

The bad one is that Apple has just been granted a patent on….wait for it…the wedge design of the MacBook Air.

Apple has been awarded a patent for the wedge design of the MacBook Air. The definition of the design is broad enough to cover many ultrabooks, extending Apple’s apparent ownership of black rectangles to thin, vaguely katana-like triangles.

As Gizmodo goes on to say, that’s some half or so of the Ultrabook market now stymied. And this really isn’t what the patent system was set up to achieve in the first place. There’s a resonance with the title of this blog: to be patentable in the past something had to be non-obvious. And I’m afraid that given that people have been cutting other things into wedges (cheese for example) for millennia then making a computer in that shape is not the sort of non-obvious thing that is really crying out for patent protection.

It is true that in the EU there is a different set of laws which protects designs, and this might well succeed under those laws as indeed Apple has used them against the Galaxy tablet recently.

But this is just trivialising the patent process.

The good news is that enforcement of patents needs to be done by the courts. And while the US Patent Office might have been getting out of hand in what it is willing to grant a patent to it appears that the courts are rather changing their minds on what to enforce. In the Apple v. Google/Motorola case we’ve had Richard Posner essentially saying, once you translate it out of legalese, please, these aren’t enforceable patents, none of you have lost any money now get out of my courtroom:

A U.S. judge yesterday threw aside a much-anticipated trial between Apple and Google-owned Motorola Mobility over smartphone patents. The decision and a blog comment by the same judge could prove to be a watershed moment for a U.S. patent system that has spiraled out of control.

In his remarkable ruling, U.S. Circuit Judge Richard Posner stated that there was no point in holding a trial because it was apparent that neither side could show they had been harmed by the other’s patent infringement. He said he was inclined to dismiss the case with prejudice — meaning the parties can’t come back to fight over the same patents — and that he would enter a more formal opinion confirming this next week.

A bit more of this sort of robust dealing with the circles of patent lawyers and we’ll be able to get the patent system back on track.

We need to recall what is the economic justification for the patent system in the first place. It is that a new invention is a public good: once someone has designed something then it’s very difficult indeed to stop someone else making something to that design. This means that those who do the inventing have a very hard time making money out of having done so. Which, in turn, means that in a capitalist society we’ll not get enough inventing done: for people cannot capture the value of what they create.

But intellectual property is not property in the traditional sense: there is no “right” to intellectual property. It’s a purely pragmatic invention, to encourage people to invent and create. And the other side of that is that we don’t want patents to be too broad, nor too easy to get, nor for too trivial or obvious a matter, that we prevent people from creating derivations of previous inventions and creations.

Patents and copyrights should exist, indeed they should. But they need to be narrow and only for non-obvious inventions.

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